Thomas v. National Football League Players Ass'n

• Decision Date: 25 February 1998
• Docket Number: Nos. 96-7242,96-7243,s. 96-7242
• Citation: 327 U.S. App. D.C. 348,131 F.3d 198
• Parties: 76 Fair Empl.Prac.Cas. (BNA) 1590, 72 Empl. Prac. Dec. P 45,139, 73 Empl. Prac. Dec. P 45,293, 327 U.S.App.D.C. 348 Valerie THOMAS, et al., Appellees/Cross-Appellants, v. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 198

131 F.3d 198

76 Fair Empl.Prac.Cas. (BNA) 1590,

72 Empl. Prac. Dec. P 45,139,

73 Empl. Prac. Dec. P 45,293, 327 U.S.App.D.C. 348

Valerie THOMAS, et al., Appellees/Cross-Appellants, v. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION Appellant/Cross-Appellee.

Nos. 96-7242, 96-7243.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 13, 1997

Decided Dec. 19, 1997.

As Vacated in Part on Rehearing Feb. 25, 1998.

Appeals from the United States District Court for the District of Columbia (No. 91cv03332).

Joseph A. Yablonski argued the cause for appellant/cross-appellee, with whom Charles R. Both and Richard A. Berthelsen, Washington, DC, were on the briefs.

David L. Rose argued the cause and filed the briefs for appellees/cross-appellants.

Before: EDWARDS, Chief Judge, GINSBURG, Circuit Judge and BUCKLEY, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

A principal claim in this case is that the defendant, acting pursuant to "mixed motives," unlawfully retaliated against the plaintiffs in violation of Title VII, 42 U.S.C. § 2000e et seq. (1994). The issues on appeal require us to delimit the requirements of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), with respect to a plaintiff's prima facie case, a defendant's burden of production, and the ultimate burdens of persuasion, in a retaliation/mixed-motives case.

The actions giving rise to this law suit occurred when Eugene Upshaw, Executive Director of the National Football League Players Association ("NFLPA"), first laid off, then terminated employees Valerie Thomas and Rita Raymond on the stated grounds that they had been disloyal in criticizing NFLPA staff and policies in an anonymously distributed document and in several legally taped telephone calls. Julie Taylor-Bland (Bland at the time of the events) resigned in the aftermath of the firing of the other two. Before leaving the employ of the NFLPA, Thomas and Bland had suggested, in conversations with management, that NFLPA promotion policy discriminated against African-American women. The three women subsequently sued the NFLPA, charging that the lay-off and discharge of Thomas and Raymond, and the alleged constructive discharge of Bland, came in retaliation to their opposition to discriminatory employment practices, and hence violated Title VII.

After trial, the District Court granted judgment as a matter of law to the NFLPA on the plaintiffs' claim that there existed a pattern and practice of discrimination at the NFLPA. Joint Appendix ("J.A.") 902-09. It then found that Thomas had been unlawfully fired, that Raymond had not made out a prima facie case of retaliation, and that Bland had not been fired at all. The trial court granted Thomas back pay and prejudgment interest, but declined to reinstate her. Thomas, et al., v. National Football League Players Ass'n, No. 91-3332 (D.D.C. Jul. 24, 1996), reprinted in J.A. 279. The NFLPA now appeals the decisions adverse to it; Thomas, Raymond, and Bland cross-appeal the decisions adverse to them.

We affirm the District Court's judgment on the merits as to Thomas, Raymond, and Bland's claims. The District Court properly considered the evidence before it and correctly apportioned burdens of production and persuasion in this mixed-motives case. We reverse and remand the grant of prejudgment interest to Thomas. On remand, the District Court should reconsider the grant of prejudgment interest for the period of delay during which the plaintiffs repeatedly amended their complaint. Finally, the District Court apparently erred in computing "fringe benefits" in connection with back pay awarded to Thomas; we therefore remand for reconsideration on this point.

I. BACKGROUND

In 1988, Thomas, Raymond, and Bland worked for the NFLPA and belonged to Office and Professional Employees International Union, Local 2 ("Local 2"). After the NFLPA's unsuccessful strike against the owners during the 1987 season, the NFLPA's finances suffered, and NFLPA Executive Director Upshaw devised a new budget for the NFLPA which sought to reduce personnel costs through attrition. J.A. 281. The board of directors of the NFLPA met during the first week of March 1988, and elected George Martin president and Mike Davis vice president. The board declined to adopt Upshaw's proposed budget, instead demanding a ten percent reduction in personnel costs by lay-off. Id.

After a banquet held in conjunction with the board meeting, Martin convened an informal gathering in his hotel room that included Thomas and Bland. Thomas and others complained about promotional opportunities for African-Americans and women in the Local 2 bargaining unit. J.A. 282. Some time after March 10, 1988, Martin organized a second meeting, which Thomas and Bland also attended. Similar concerns were raised, and someone present accused Upshaw of racism. Id.

In the weeks that followed, Martin and Davis conducted personal and telephone interviews with staff on a range of employment-related subjects. Interviewees were assured of confidentiality. In their interviews, Thomas and Bland expressed views on race and sex discrimination at the NFLPA. Davis also interviewed Raymond. J.A. 283. Around the same time, Upshaw implemented the NFLPA board's directive to lay off some employees to cut costs. Prior to the lay-offs, Upshaw heard from Davis that Thomas and Raymond had criticized various employees in telephone conversations with Davis, and were suspected of producing and circulating a document harshly critical of the NFLPA. The document was headed and referred to as "What every player should know about the NFLPA." It included, among other allegations, a variety of claims about unfair promotion practices at the NFLPA. J.A. 285-86. It did not include allegations of racial discrimination.

On March 18, 1988, Upshaw laid off six employees, among whom were Thomas and Raymond. When Thomas returned to her office after learning of the lay-offs, she discovered workers changing the locks on her door and shutting down her computer. J.A. 284. At a time proximate to the lay-offs, Martin undertook to investigate the employees' allegations of misconduct at the NFLPA, and asked Upshaw about minority issues at the NFLPA. Martin told Upshaw that Thomas had called him a racist and had complained about promotion of African-Americans and women. Id. Martin and Davis each gave copies of the "What every player should know" memorandum to Upshaw. Davis told Upshaw about his telephone conversations with Thomas and Raymond and that Raymond had mailed him a copy of the memorandum. Id.

On March 23, 1988, Davis gave Upshaw tapes of his telephone conversations with Thomas and Raymond. According to Upshaw's uncontradicted testimony, the conversations included ad hominem attacks on various NFLPA employees, including Upshaw. On the tapes, Raymond promised to send a copy of the "What every player should know" memorandum to Davis. Upshaw concluded that Thomas and Raymond had written the memo.

On April 12, 1988, five of the six employees laid off on March 18 were fired for cause. Upshaw sent each employee an identical letter explaining the firing on the grounds that the employees had libeled and slandered NFLPA personnel; had violated confidentiality; and had shown disloyalty towards and intentionally embarrassed the NFLPA. J.A. 286. Upshaw later testified that he fired Thomas and Raymond for what he believed they had said and written about the NFLPA employees. Some weeks later, Bland asked Upshaw about a newly open paralegal/secretary position, and Upshaw told her that he "did not see her in the job"; on May 20, 1988, Bland resigned. J.A. 287.

Local 2 pursued grievances against the NFLPA on behalf of Thomas and Raymond. The grievances were appealed to arbitration and an arbitrator ruled that the two had been dismissed without just cause. The arbitrator's award ordered reinstatement, Plaintiffs' Trial Exhibits ("P.X.") 77, but the NFLPA failed to comply. Thomas, Raymond, and Bland also filed timely charges with the Equal Employment Opportunity Commission ("EEOC"), which, after some delay, issued "no cause" determinations on all their claims. At trial, the District Court dismissed as a matter of law plaintiffs' claim of a pattern and practice of discrimination. J.A. 902-09. It found for Thomas and awarded her back pay, without reinstatement, with prejudgment interest for twenty-one months after her firing, based on expert testimony that estimated the time it should have taken Thomas to find new employment. The District Court found against Raymond, who did not appear at trial. Finally, the District Court found that Bland had not been constructively discharged.

II. ANALYSIS

A. Burdens of Pleading, Production, and Persuasion Under Title VII

Title VII makes it unlawful to retaliate against an employee who "has opposed any practice made an unlawful practice" by the statute. 42 U.S.C. § 2000e-3(a). The legal framework for analyzing retaliation claims under Title VII is as follows.

As in all Title VII cases, the plaintiff must first make out a prima facie case of unlawful employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Where retaliation is alleged, a prima facie case requires a showing that (1) plaintiff engaged in protected activity, (2) plaintiff was subjected to adverse action by the employer, and (3) there existed a causal link between the adverse action and the protected activity. Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985). A rebuttable presumption of unlawful discrimination arises when a plaintiff makes out a prima facie case. Texas Dep't of Community Affairs v. Burdine, 450 U.S....